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made. Should the fifth day of the month
fall on a weekend or holiday,
assessments are due by the first business
day prior to the fifth day of the month.
Each handler shall pay interest of one
percent per month on any unpaid
assessments levied pursuant to § 955.42
and on any accrued unpaid interest
beginning the day immediately after the
date the monthly assessments were due,
until the delinquent handler’s
assessments, plus applicable interest,
has been paid in full.
Dated: June 8, 2006.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. E6–9235 Filed 6–14–06; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF HOMELAND
SECURITY
Bureau of Immigration and Customs
Enforcement
8 CFR Part 274a
[BICE 2345–05; DHS–2005–0046]
RIN 1653–AA47
Electronic Signature and Storage of
Form I–9, Employment Eligibility
Verification
Bureau of Immigration and
Customs Enforcement, DHS.
ACTION: Interim rule with request for
comments.
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AGENCY:
SUMMARY: This interim rule amends
Department of Homeland Security
regulations to provide that employers
and recruiters or referrers for a fee who
are required to complete and retain
Forms I–9, Employment Eligibility
Verification, may sign and retain these
forms electronically. This interim rule
implements statutory changes to the
Form I–9 retention requirements by
establishing standards for electronic
signatures and the electronic retention
of the Form I–9.
DATES: Effective Date: This interim rule
is effective June 15, 2006.
Comment Date: Written comments
must be submitted on or before August
14, 2006.
ADDRESSES: You may submit comments,
identified by docket number, by one of
the following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Jim Knapp, Associate Legal
Advisor, Bureau of Immigration and
Customs Enforcement, Room 6100, 425
I. St., NW., Washington, DC 20536.
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Jim
Knapp, Associate Legal Advisor, Bureau
of Immigration and Customs
Enforcement, Room 6100, 425 I St.,
NW., Washington, DC 20536. Telephone
(202) 514–8138 (not a toll-free number).
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION
I. Background
A. Employment Eligibility Verification
Requirement
Section 274A of the Immigration and
Nationality Act (Act), 8 U.S.C. 1324a,
requires all United States employers,
agricultural associations, agricultural
employers, farm labor contractors, or
persons or other entities who recruit or
refer persons for employment for a fee,
to verify the employment eligibility and
identity of all employees hired to work
in the United States after November 6,
1986. To comply with the law, an
employer, or a recruiter or referrer for a
fee, is responsible for the completion of
an Employment Eligibility Verification
form (Form I–9) for all employees,
including United States citizens. 8 CFR
274a.2.
Completed Forms I–9 are not filed
with the Federal Government; instead,
the completed I–9 form is retained by
the employer. Employers are required to
retain Forms I–9 in their own files for
three years after the date of hire of the
employee or one year after the date that
employment is terminated, whichever is
later. 8 CFR 274a.2(c)(2). Recruiters or
referrers for a fee are required to retain
the Forms I–9 for three years after the
date of hire. Id. at (d)(2). The failure to
properly complete and retain the Forms
I–9 subjects the employer to civil money
penalties. Section 274A of the Act, 8
U.S.C. 1324a(e)(5).
B. Format of the Form I–9
Form I–9 has been made available to
the public in numerous paper and
electronic means since 1986. The Form
I–9 is currently available online at the
U.S. Citizenship and Immigration
Services (USCIS) Web site at (http://
www.uscis.gov) as a Portable Document
Format (.pdf) fillable—printable form
http://uscis.gov/graphics/formsfee/
forms/files/i-9.pdf. In short, an
employer or employee can retrieve the
form, type the required information into
it for a prospective employee, and print
it. The form may then be retained in
paper, microfilm, or microfiche form. In
conjunction with this interim rule, the
Department of Homeland Security
(DHS) is upgrading the downloadable
PDF version of Form I–9 to enable
employers and employees to
electronically sign and save the filled
Form I–9. This provides employers an
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additional option for convenience and
savings. This PDF version of Form I–9
complies with the electronic form
requirements of this rule.
However, existing DHS regulations do
not permit the form to be completed and
stored electronically as an original
record. On October 30, 2004, Public Law
108–390, 11 Stat. 2242, authorized
employers to retain Forms I–9 in
electronic format, effective April 29,
2005, or the effective date of
implementing regulations, whichever
occurred first. The legislation also
allows employers and employees to
manifest attestations using electronic
signature technology.
This interim rule conforms the
regulations to the requirements of
Public Law 108–390 and permits
employers to complete, sign, and store
Forms I–9 electronically, as long as
certain performance standards set forth
in this interim rule for the electronic
filing system are met. This interim rule
also permits employers to electronically
scan and store existing Forms I–9, as
long as standards set forth in this
interim rule for the electronic storage
system are met. The interim rule adopts
performance standards that have been
proven by other agencies in the past and
provides flexibility for employers to
choose a method of retention that is the
most economically feasible for their
specific business. Utilizing the most
widely applicable standards, those
adopted by the Internal Revenue Service
(IRS) for tax records, provides the
widest possible cost savings within the
business community because of existing
compliance with those standards.
C. Electronic Recordkeeping Standards
There is no single United States
Government-wide electronic
recordkeeping standard for
recordkeeping by private individuals
and entities. However, some United
States Government agencies provide
electronic recordkeeping standards for
use in transactions with that agency.
These standards provide a baseline for
proven practices. To the extent that
these standards are applicable to the
electronic storage of Form I–9, DHS
attempts to use the requirements and
language of existing standards. At the
same time, DHS recognizes that systems
for electronic recordkeeping develop
rapidly with the creation of new storage
mechanisms, mediums, and methods.
Accordingly, the standards adopted in
this rule are ‘‘product neutral’’ and will
guide the application of new products to
meet minimum performance standards,
rather than establishing specific
requirements.
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Federal Register / Vol. 71, No. 115 / Thursday, June 15, 2006 / Rules and Regulations
The Internal Revenue Service’s Rev.
Proc. 97–22, 1997–1 C.B. 652, 1997–13
I.R.B. 9 (March 31, 1997), and Rev. Proc.
98–25, 1998–1 C.B. 689, 1998–11 I.R.B.
7 (March 16, 1998), specify electronic
recordkeeping standards for taxpayers.
This regulation closely follows the
widely accepted electronic storage
standards and requirements set forth in
the IRS Rulings previously published.
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The derivation of the substantive
standards of this interim rule is set forth
below.
DERIVATION OF SUBSTANTIVE STANDARDS FOR ELECTRONIC RETENTION OF FORM I–9
Source of provision
Description of provision
8 CFR 274a.2(e)(1) .......................
8 CFR 274a.2(e)(2) .......................
Rev. Proc. 97–22, section 4.01(2) .......
Rev. Proc. 97–22, section 4.01(3) .......
8 CFR 274a.2(e)(3) .......................
Rev. Proc. 97–22, section 4.01(7) .......
8 CFR 274a.2(e)(4) .......................
Rev. Proc. 97–22, section 4.01(9) .......
8 CFR 274a.2(e)(5) .......................
Rev. Proc. 97–22, section 4.01(5) .......
8 CFR 274a.2(e)(6) .......................
8 CFR 274a.2(e)(7) .......................
8 CFR 274a.2(e)(8) .......................
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Provision of this rule
Rev. Proc. 97–22, section 4.02(1) .......
Rev. Proc. 97–22, section 4.01(10) .....
Rev. Proc. 97–22, section 4.01(6) .......
Requirements for the electronic generation or storage system.
Requires reproduced documents to exhibit a high degree of legibility and readability.
Requires that any electronic storage system must not be subject to
any agreement that would limit or restrict the relevant Government personnel’s access or use on the premises.
Allows use of multiple electronic systems so long as each meets
the relevant standards.
Requires that descriptions of the system, including procedures for
use and indexing systems, be maintained and made available
upon request.
Defines indexing system that complies with requirements.
Permits reasonable data compression and formatting technologies.
Requirements for inspection.
The widespread application of these
IRS standards by the business
community is the critical reason for
adoption of these standards. This
adoption of existing standards should
reduce any potential burden on the
portion of the business community that
decides to utilize electronic retention.
In 17 CFR 240.17a4, the Securities
and Exchange Commission (SEC)
specifies electronic recordkeeping
standards for certain exchange
members, brokers and dealers. DHS did
not incorporate specific language from
the SEC provisions; however, it did find
them instructive on how to establish
electronic systems. In particular, 8 CFR
240.17a4(f) provides instruction on
audit and indexing systems that
employers could find helpful when
complying with the similar provisions
set forth in this regulation.
Also instructive are the regulations of
the National Archives and Records
Administration found in 36 CFR part
1234, which set standards for federal
agencies to use in order to enhance the
trustworthiness of an agency’s own
electronic records and their
admissibility as evidence in court
proceedings. Employers utilizing
electronic retention and signature
technology for Form I–9 may find it
helpful to review system requirements
placed upon Federal agencies. These
standards define terms of art related to
the requirements of this regulation and
provide information that could help
guide businesses establish security and
maintenance procedures for electronic
records.
Using precedents set by 36 CFR part
1234 and other United States
Government agencies, this interim rule
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provides a reasonable set of standards
for creating a trustworthy system for
Form I–9 completion and storage. The
standards are technology neutral, and
allow businesses the flexibility to keep
records in a manner consistent with
other business processes. They also
provide DHS investigators with a
framework for inspecting the records
and assessing their trustworthiness.
DHS is working with the IRS to
develop audit protocols to minimize
requirements on businesses to provide
information from Forms I–9 when the
DHS Bureau of Immigration and
Customs Enforcement (ICE) determines
that audit and review is necessary.
D. Development of the Rule
After the President signed Public Law
108–390, a working group was
established within DHS, consisting of
representatives from ICE and USCIS.
This regulation was developed, drawing
upon work begun under the legacy
Immigration and Naturalization Service,
as well as relying on standards
developed by other Federal agencies
utilizing electronic retention and
signature methods. On December 10,
2004, at the request of the United States
Chamber of Commerce, DHS
representatives met with the Electronic
I–9 Coalition. This Coalition consisted
of representatives from a wide array of
business interests. The Chamber of
Commerce facilitated the meeting so the
Coalition members could express views
to DHS regarding the importance of the
statute and to offer insight on methods
of storage and attestation being
contemplated by the business
community. DHS representatives
listened to the views presented, but
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could not offer any guidance on specific
aspects of the regulation. DHS has
carefully considered the views
expressed and, to the extent practical
and in the public interest, incorporated
those suggestions. There are a number of
potential advantages that employers
may gain through use of electronic
Forms I–9. Many employers may
experience cost savings by storing
Forms I–9 electronically rather than
using conventional filing and storage of
paper copies or transferring the forms to
microfilm or microfiche. Electronic
forms may allow employers to better
ensure that each Form I–9 is properly
completed and retained. Some
employers may find that electronic
completion and storage renders the
process less prone to error.
Electronically retained Forms I–9 are
more easily searchable, which is
important for re-verification, quality
assurance and inspection purposes. This
will be especially helpful and costeffective for large employers that have
job sites across the country or that have
high employee turnover rates.
On April 26, 2005, a fact sheet was
published on the ICE Web site to
provide information on the
development of the regulation based on
IRS Revenue Procedure 97–22. The fact
sheet included suggested standards
established by IRS, and advantages for
using electronic signature and retention
of Form I–9.
E. Employer Compliance
An employer that is currently
complying with the recordkeeping and
retention requirements of current 8 CFR
274.2 is not required to take any
additional or different action to comply
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with the revised rules. The revised rules
offer an additional option. Businesses
will be permitted to adopt one or more
of a number of different electronic
recordkeeping, attestation, and retention
systems that are compliant with the
existing IRS standards.
For example, a small business may
wish to download and retain .pdf
versions of the employment verification
record. DHS made this system available
on the USCIS Web site.
Employers who already utilize
electronic data recordkeeping as part of
their accounting and tax functions may
expand those functions to include the
employment verification process. As
long as the electronic records system
remains IRS-compliant, the system will
be ICE-compliant.
F. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of the
proposed rule. DHS also invites
comments that relate to the economic,
environmental, or federalism affects that
might result from this proposed rule.
Comments that will provide the most
assistance to DHS in developing these
procedures will reference a specific
portion of the proposed rule, explain the
reason for any recommended change,
and include data, information, or
authority that support such
recommended change.
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking. All
comments received will be posted
without change to http://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov. Submitted
comments may also be inspected at the
street at the address noted above by
making an appointment with the
individual listed as the individual to
contact for further information.
II. Regulatory Requirements
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A. Administrative Procedure Act (Good
Cause Exception)
Implementation of this rule as an
interim rule effective on June 15, 2006,
with a request for public comment after
the effective date of the rule is based
upon the ‘‘good cause’’ exceptions
found under the Administrative
Procedure Act (APA), 5 U.S.C. 553(b)(B)
and (d)(3). DHS has determined that
delaying implementation of this rule
until after a period for public notice and
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comment, analysis of the public
comments (if any), preparation of a final
rule, and providing a delayed postpublication effective date of at least 30
days, are impracticable and contrary to
the public interest for the following
reasons:
This regulation adopts existing,
widely-utilized standards for electronic
recordkeeping to permit any employer
who is required to retain Form I–9, to
retain that form in an electronic format.
Because of the widespread application
of the same rules required to establish
taxable income and other matters within
the jurisdiction of the IRS in the larger
accounting context, it is impractical to
adopt differing rules for a specific set of
employment forms. Accordingly,
providing an opportunity for notice and
comment on whether to adopt such
widely accepted standards is
impractical and unnecessary. Also, the
rule provides additional optional
methods for complying with an existing
requirement. The methods may be
utilized or not utilized, in the discretion
of the employer. Therefore, a delayed
effective date is not necessary.
DHS recognizes that the effective date
of the underlying statute authorizing
electronic retention of Form I–9 was
April 28, 2005. DHS will not require
that forms created between that date and
the effective date of the rule must
comply with this rule. If an audit of
such records is required, DHS will
permit the employer to provide the
forms in paper form; this rule does not
require that any employer use an
electronic record keeping system.
Moreover, as far as DHS can
determine at this time, ‘‘off the shelf’’
computer programs and commercial
automated data processing systems in
use comply with the standards required
by this rule. DHS is not aware of
systems that would not immediately be
useable under the regulations.
Accordingly, DHS finds that no
employer required to retain Form I–9
would be adversely affected by the
adoption of this rule without prepromulgation notice and comment or a
delayed effective date.
DHS nevertheless invites comments
on this interim rule and will consider
all timely comments in the preparation
of a final rule. In particular, DHS is
interested in identifying whether any
existing systems for electronic record
keeping do not comply with these
standards in order to adjust the
standards or provide a means to
resolving any discrepancies.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
mandates that DHS conduct an RFA
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analysis when an agency is ‘‘required by
section 553, or any other law, to publish
general notice of proposed rulemaking
for any proposed rule.’’ 5 U.S.C. 603(a).
RFA analysis is not required when a
rule is exempt from notice and comment
rulemaking under 5 U.S.C. 553(b). DHS
has determined that good cause exists
under 5 U.S.C. 553(b)(B) to exempt this
rule from the notice and comment
requirements of 5 U.S.C. 553(b).
Therefore, no RFA analysis under 5
U.S.C. 603 is required for this rule.
C. Unfunded Mandates Reform Act of
1995
This interim rule will not result in an
expenditure by state, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
D. Small Business Regulatory
Enforcement Fairness Act of 1996
This interim rule is not a major rule
as defined by section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This interim rule
will not result in an annual effect of
$100 million or more on the economy;
a major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets. Since utilizing
electronic signature and storage
technologies are optional, DHS expects
that small businesses will only choose
electronic methods if they will save
costs and/or lessen overall burden.
Providing this option should, therefore,
have a net cost-saving effect to small
businesses.
E. Executive Order 12866 (Regulatory
Planning and Review)
This interim rule is considered by
DHS to be a ‘‘significant regulatory
action’’ under Executive Order 12866,
section 3(f), Regulatory Planning and
Review. Accordingly, the rule has been
submitted to the Office of Management
and Budget (OMB) for review.
DHS has assessed both the cost and
benefits of this interim rule as required
by Executive Order 12866 section
1(b)(6), and has made a reasoned
determination that the benefits of this
interim rule justify its costs to the
public and Government. In fact, DHS
anticipates that both the public and
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Government will experience a net cost
savings as a result of this rule. Whether
to store Forms I–9 in an electronic
format will be within the discretion of
the employer or the recruiter or referrer
for a fee—those that are already required
under 8 CFR 274a.2 to retain the Forms
I–9.
The number of Forms I–9 maintained
throughout the country is extremely
large. Storage of Forms I–9 to meet the
statutory retention requirement may
require the employer to make a
significant investment in personnel and
storage space. Currently, storage costs
for the paper Form I–9 vary, depending
on the storage facility used and the
number of Forms I–9 that must be
stored. DHS believes that Form I–9
storage costs are highest with large
employers or those who have a high
employee attrition rate. At an estimated
employer total labor cost of $20 per
hour, employer burden savings are
estimated to be $13,000,000 annually.
DHS considers this a conservative
estimate, which is based on agency
experience since the Form I–9
requirement was implemented. Further,
we expect that some employers will
have capital costs at the outset,
depending on the size and complexity
of the system chosen. DHS is unable to
estimate possible capital costs as these
could vary widely as employers
implement a range of electronic options,
from simply using a scanner to
electronically retain a completed Form
I–9 to a complex database that facilitates
electronic completion, attestation,
retention, production, etc.
Employers utilizing electronic Forms
I–9 will bear additional costs associated
with the documentation that this rule
requires to establish the integrity of the
electronic Form I–9 process chosen.
This is an initial cost to the employer
and will vary depending on the
sophistication and capacity of each
system deployed. The documentation
necessary should accompany the
software and hardware being used by
the employer to implement the
electronic Form I–9.
For employers responsible for a
significant number of Forms I–9, these
costs are expected to be lower than the
costs associated with retaining Forms I–
9 in paper format. For employers who
do not have a large number of Forms I–
9 to retain, utilizing an electronic Form
I–9 may not be economical. However,
the benefits of using an electronic Form
I–9 extend beyond storage space. DHS
believes that employers using electronic
Forms I–9 will improve their accuracy
rate. By completing and/or storing
Forms I–9 electronically, employers will
be better able to self-audit Forms I–9 in
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order to detect and correct errors.
Employers could create an electronic
process for Form I–9 completion that
minimizes the possibility of errors. The
process could include prompts that
preclude the user from completing the
rest of the form until an acceptable
response is provided. Employers would
also be better able to create a reliable
system to re-verify an employee’s
employment authorization when it is
about to expire. The forms could be
stored on a computer maintained onsite
rather than in boxes off-site or other
difficult-to-access locations, which DHS
has observed when conducting past
Form I–9 audits. Electronically stored
forms could be presented for review in
a matter of minutes rather than the
lengthy period required to access paper
or microfiche archives. While employers
converting to an electronic Form I–9
format may incur initial costs, DHS
anticipates that employers who use an
electronic Form I–9 system tailored to
their needs will generally achieve a net
cost-savings in both the short term and
long term. In addition, DHS anticipates
that its Form I–9 audits will reveal a
lower error rate. This should translate
into a more efficient employment
eligibility verification process for
employers and, therefore, a lower
incidence of unauthorized workers in
the workplace. In recent years, DHS has
received many queries from the
employer community regarding the
possibility of using electronic Forms I–
9, with electronic attestation, and
storing the forms electronically.
Employers have expressed their
frustration with the requirement to keep
paper forms or maintain the forms on
microfilm or microfiche when all other
aspects of their businesses have been
automated.
For some employers, particularly
small employers, retaining the paper
Form I–9 may continue to be the most
cost-effective and efficient storage
method. This rule does not eliminate
this option or discourage employers
from using it. The paper Form I–9 has
the advantage of recording the unique
signature of the employee and of the
employer representative. This interim
rule does not make any change to the
current paper Form I–9 process.
Additionally, employers can utilize a
combination of paper and electronic
methods for fulfilling the Form I–9
requirements. For example, an employer
can complete the paper Form I–9 and
use a scanner to retain electronically.
Conversely, an employer can choose to
complete the Form I–9 electronically
and retain the printed form.
For the Government, amending the
regulations to permit the electronic
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signatures and retention of Form I–9 has
many advantages, particularly with
respect to DHS’s enforcement efforts.
When conducting audits, DHS will be
able to receive Forms I–9 electronically,
rather than using staff resources to
physically appear at a worksite. Once
the Form I–9 data is received
electronically, DHS will have increased
flexibility in how it reviews and
analyzes them. DHS will be able to more
easily compare data among multiple
audits to locate unauthorized workers,
and store audit records for easy access.
When investigating the presence of
unauthorized workers in the workplace,
employers violating the immigration
laws, or national security risks, DHS
will have this information immediately
available and with less risk of human
error. Additionally, there are
circumstances in which the Department
of Labor and the Department of Justice,
Office of Special Counsel for
Immigration-Related Unfair
Employment Practices, access Forms I–
9 in order to exercise their
responsibilities.
DHS anticipates that its own
additional costs will be minimal. DHS
currently inputs Form I–9 information
manually into a database. If an employer
chooses to electronically retain Form I–
9, then the rule’s requirement that Form
I–9 information be presented in a
particular electronic format will enable
the electronic transfer of information
from employer to DHS to be nearly
instantaneous. Therefore, rather than
invest DHS investigator time in data
entry, investigators will be free to
conduct more-thorough investigations.
Once employers begin to utilize
electronic Forms I–9 and the various
electronic Form I–9 storage options,
DHS will be able to better gauge what
additional or alternative database and
storage options would further increase
the efficiency of its investigations. At
present, DHS will utilize current
systems to implement this rule.
This rule does not limit employers to
using one system for the storage of
Forms I–9 electronically, nor does it
identify one method for acceptable
electronic signatures. Instead, this rule
seeks to set acceptable standards for
employers. Electronic signatures can be
accomplished using various
technologies including, but not limited
to, electronic signature pads, Personal
Identification Numbers (PIN),
biometrics, and ‘‘click to accept’’ dialog
boxes. DHS considered specifying
acceptable technologies, but rejected
this alternative as being too inflexible
for employers’ needs and economic
means. Moreover, to specify a particular
technology would require continuous
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amendments to the regulations
reflecting the rapid changes in
technology. DHS concluded that this
approach would be impractical and
detrimental to employers since it would
require continuous and potentially
costly changes to employers’ business
practices.
F. Executive Order 13132 (Federalism)
This interim rule will not have a
substantial direct effect on the States, on
the relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of Government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
interim rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
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G. Executive Order 12988 (Civil Justice
Reform)
This interim rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501 et seq., all
Departments are required to submit any
reporting or recordkeeping requirements
inherent in a rule to the Office of
Management and Budget (OMB) for
review and approval. This interim rule
requires employers to complete the
Form I–9 which has been approved for
use by OMB (OMB Control Number
1615–0047); it also permits the
employer to continue to retain the Form
I–9 in paper, microfiche, or microfilm,
and allows a new option: to retain the
Form I–9 electronically. The DHS
believes that storing the I–9
electronically will reduce the burden on
businesses by 650,000 hours (see
discussion below). Accordingly, DHS
submitted the required Paperwork
Reduction Change Worksheet (OMB–
83C) to the Office of Management and
Budget (OMB) reflecting the reduction
in burden hours for Form I–9, and the
OMB has approved the changes.
DHS estimates that there will be a
total of 78,000,000 respondents
annually who will complete the
required Form I–9 in either paper or
electronic format. DHS has estimated
that it takes 9 minutes to gather the
required evidence to complete the paper
Form I–9 and an additional 4 minutes
for employer verification, filing and
storage. Because this regulation is
technology neutral, it is difficult for
DHS to estimate the average time
required to complete a Form I–9
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14:45 Jun 14, 2006
Jkt 208001
electronically, as completion methods
may vary widely depending upon the
range of systems implemented by
employers. However, DHS does not
believe the time per respondent will
change significantly as the
documentation required is unchanged.
Many businesses could reduce the time
burden by using an electronic Form I–
9, as the documentation could be
collected from an employee in
conjunction with other types of
personnel forms (i.e., tax withholding
forms, insurance and other benefit
forms) that require similar personal
information.
For employers who choose electronic
retention methods for the Form I–9,
DHS does expect a burden reduction.
DHS previously estimated that
employers spend four minutes per form
to verify and file. We project that half
of the estimated 78,000,000 Forms I–9
completed annually will involve some
method of electronic generation or
retention. Employers utilizing at least a
partial electronic process for retention
of the Form I–9 should save a minimum
of one minute of burden time per form
based on the previous estimate of 4
minutes per form for verification and
filing. Based on 39,000,000 Forms I–9,
the total labor hours saved would be
650,000 hours annually.
Under 8 CFR 274a.2(e) through (i),
any employer who stores Form I–9
electronically or any employer that
applies an electronic signature to the
Form I–9 must demonstrate that its
electronic storage system is properly
maintained and protected against
tampering, and that any electronic
signature can be authenticated. In
addition, an employer or entity who
chooses to complete and/or retain
Forms I–9 electronically must maintain,
and make available to the Department
upon request, documentation of the
business process that: (1) Creates the
retained Forms I–9; (2) Modifies and
maintains the retained Forms I–9; and
(3) Establishes the authenticity and
integrity of the Forms I–9, such as audit
trails. These additional requirements are
considered information collections
under the Paperwork Reduction Act.
These requirements are reflected in the
Paperwork Reduction Change
Worksheet (Form OMB 83–C) that has
been submitted to OMB and that
specifies the estimated net reduction in
burden hours that will result from this
rule.
List of Subjects in 8 CFR Part 274a
Administrative practice and
procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping
requirements.
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Accordingly, part 274a of chapter I of
title 8 of the Code of Federal
Regulations is amended as follows:
I
PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS
1. The authority citation for part 274a
continues to read as follows:
I
Authority: 8 U.S.C. 1101, 1103, 1324a; 8
CFR part 2.
2. Section 274a.2 is amended:
a. By revising paragraph (a);
b. By revising paragraph (b)(1)(i)(A);
c. By revising paragraph (b)(1)(ii)(B);
d. By revising the last sentence in
paragraph (b)(1)(iv);
I e. By revising the last sentence of
paragraph (b)(1)(vii);
I f. By revising paragraph (b)(2)(i)
introductory text;
I g. By revising paragraph (b)(2)(ii);
I h. By adding paragraph (b)(2)(iv);
I i. By revising paragraph (b)(3);
I j. By adding the term ‘‘or electronic
images’’ immediately after ‘‘copies’’ in
paragraph (b)(4); and
I k. By adding new paragraphs (e), (f),
(g), (h), and (i).
The revisions and additions read as
follows:
I
I
I
I
I
§ 274a.2 Verification of employment
eligibility.
(a) General. This section establishes
requirements and procedures for
compliance by persons or entities when
hiring, or when recruiting or referring
for a fee, or when continuing to employ
individuals in the United States.
(1) Recruiters and referrers for a fee.
For purposes of complying with section
274A(b) of the Act and this section, all
references to recruiters and referrers for
a fee are limited to a person or entity
who is either an agricultural association,
agricultural employer, or farm labor
contractor (as defined in section 3 of the
Migrant and Seasonal Agricultural
Worker Protection Act, Pub. L. 97–470
(29 U.S.C. 1802)).
(2) Verification form. Form I–9,
Employment Eligibility Verification
Form, is used in complying with the
requirements of this 8 CFR 274a.1—
274a.11. Form I–9 can be in paper or
electronic format. In paper format, the
Form I–9 may be obtained in limited
quantities at USCIS district offices, or
ordered from the Superintendent of
Documents, Washington, DC 20402. In
electronic format, a fillable electronic
Form I–9 may be downloaded from
http://www.uscis.gov. Alternatively,
Form I–9 can be electronically generated
or retained, provided that the resulting
form is legible; there is no change to the
name, content, or sequence of the data
elements and instructions; no additional
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data elements or language are inserted;
and the standards specified under 8 CFR
274a.2(e), (f), (g), (h), and (i), as
applicable, are met. When copying or
printing the paper Form I–9, the text of
the two-sided form may be reproduced
by making either double-sided or singlesided copies.
(3) Attestation Under Penalty and
Perjury. In conjunction with completing
the Form I–9, an employer or recruiter
or referrer for a fee must examine
documents that evidence the identity
and employment eligibility of the
individual. The employer or recruiter or
referrer for a fee and the individual
must each complete an attestation on
the Form I–9 under penalty of perjury.
(b) * * *
(1) * * *
(i) * * *
(A) Completes section 1—‘‘Employee
Information and Verification’’—on the
Form I–9 at the time of hire and signs
the attestation with a handwritten or
electronic signature in accordance with
paragraph (h) of this section; or if an
individual is unable to complete the
Form I–9 or needs it translated,
someone may assist him or her. The
preparer or translator must read the
Form I–9 to the individual, assist him or
her in completing Section 1—
‘‘Employee Information and
Verification,’’ and have the individual
sign or mark the Form I–9 by a
handwritten signature, or an electronic
signature in accordance with paragraph
(h) of this section, in the appropriate
place; and
*
*
*
*
*
(ii) * * *
(B) Complete section 2—‘‘Employer
Review and Verification’’—on the Form
I–9 within three days of the hire and
sign the attestation with a handwritten
signature or electronic signature in
accordance with paragraph (i) of this
section.
*
*
*
*
*
(iv) * * * If a recruiter or referrer
designates an employer to complete the
employment verification procedures,
the employer need only provide the
recruiter or referrer with a photocopy or
printed electronic image of the Form I–
9, electronic Form I–9, or a Form I–9 on
microfilm or microfiche.
*
*
*
*
*
(vii) * * * The employer or the
recruiter or referrer for a fee must
review this document, and if it appears
to be genuine and relate to the
individual, re-verify by noting the
document’s identification number and
expiration date, if any, on the Form I–
9 and signing the attestation by a
handwritten signature or electronic
VerDate Aug<31>2005
14:45 Jun 14, 2006
Jkt 208001
signature in accordance with paragraph
(i) of this section.
*
*
*
*
*
(2) * * *
(i) A paper (with original handwritten
signatures), electronic (with acceptable
electronic signatures that meet the
requirements of paragraphs (h) and (i) of
this section or original paper scanned
into an electronic format that meets the
requirements of 8 CFR 274a.2(e), (f), and
(g)), or microfilm or microfiche copy of
the original signed version of the Form
I–9 must be retained by an employer or
a recruiter or referrer for a fee for the
following time periods:
*
*
*
*
*
(ii) Any person or entity required to
retain Forms I–9 in accordance with this
section shall be provided with at least
three days notice prior to an inspection
of the Forms I–9 by officers of an
authorized agency of the United States.
At the time of inspection, Forms I–9
must be made available in their original
paper, electronic form, a paper copy of
the electronic form, or on microfilm or
microfiche at the location where the
request for production was made. If
Forms I–9 are kept at another location,
the person or entity must inform the
officer of the authorized agency of the
United States of the location where the
forms are kept and make arrangements
for the inspection. Inspections may be
performed at an office of an authorized
agency of the United States. A recruiter
or referrer for a fee who has designated
an employer to complete the
employment verification procedures
may present a photocopy or printed
electronic image of the Form I–9 in lieu
of presenting the Form I–9 in its original
paper or electronic form or on microfilm
or microfiche, as set forth in paragraph
(b)(1)(iv) of this section. Any refusal or
delay in presentation of the Forms I–9
for inspection is a violation of the
retention requirements as set forth in
section 274A(b)(3) of the Act. No
Subpoena or warrant shall be required
for such inspection, but the use of such
enforcement tools is not precluded. In
addition, if the person or entity has not
complied with a request to present the
Forms I–9, any officer listed in 8 CFR
287.4 may compel production of the
Forms I–9 and any other relevant
documents by issuing a subpoena.
Nothing in this section is intended to
limit the subpoena power under section
235(a) of the Act.
*
*
*
*
*
(iv) Paragraphs (e), (f), (g), (h), and (i)
of this section specify the standards for
electronic Forms I–9.
(3) Copying of documentation. An
employer, or a recruiter or referrer for a
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Fmt 4700
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34515
fee may, but is not required to, copy or
make an electronic image of a document
presented by an individual solely for the
purpose of complying with the
verification requirements of this section.
If such a copy or electronic image is
made, it must be retained with the Form
I–9. The copying or electronic imaging
of any such document and retention of
the copy or electronic image does not
relieve the employer from the
requirement to fully complete section 2
of the Form I–9. An employer, recruiter
or referrer for a fee should not, however,
copy or electronically image only the
documents of individuals of certain
national origins or citizenship statuses.
To do so may violate section 274B of the
Act.
(4) Limitation on use of Form I–9. Any
information contained in or appended
to the Form I–9, including copies or
electronic images of documents listed in
paragraph (c) of this section used to
verify an individual’s identity or
employment eligibility, may be used
only for enforcement of the Act and 18
U.S.C. 1001, 1028, 1546, or 1621.
*
*
*
*
*
(e) Standards for electronic retention
of Form I–9. (1) Any person or entity
who is required by this section to
complete and retain Forms I–9 may
complete or retain electronically Form
I–9 in an electronic generation or
storage system that includes:
(i) Reasonable controls to ensure the
integrity, accuracy and reliability of the
electronic generation or storage system;
(ii) Reasonable controls designed to
prevent and detect the unauthorized or
accidental creation of, addition to,
alteration of, deletion of, or
deterioration of an electronically
completed or stored Form I–9, including
the electronic signature if used;
(iii) An inspection and quality
assurance program evidenced by regular
evaluations of the electronic generation
or storage system, including periodic
checks of the electronically stored Form
I–9, including the electronic signature if
used;
(iv) In the case of electronically
retained Forms I–9, a retrieval system
that includes an indexing system that
permits searches by any data element;
and
(v) The ability to reproduce legible
and readable hardcopies.
(2) All documents reproduced by the
electronic retention system must exhibit
a high degree of legibility and
readability when displayed on a video
display terminal or when printed on
paper, microfilm, or microfiche. The
term ‘‘legibility’’ means the observer
must be able to identify all letters and
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numerals positively and quickly, to the
exclusion of all other letters or
numerals. The term ‘‘readability’’ means
that the observer must be able to
recognize any group of letters or
numerals that form words or numbers as
those words or complete numbers. The
employer, or recruiter or referrer for a
fee, must ensure that the reproduction
process maintains the legibility and
readability of the electronically stored
document.
(3) An electronic generation or storage
system must not be subject, in whole or
in part, to any agreement (such as a
contract or license) that would limit or
restrict access to and use of the
electronic generation or storage system
by an agency of the United States, on
the premises of the employer, recruiter
or referrer for a fee (or at any other place
where the electronic generation or
storage system is maintained), including
personnel, hardware, software, files,
indexes, and software documentation.
(4) A person or entity who chooses to
complete or retain Forms I–9
electronically may use more than one
electronic generation or storage system.
Each electronic generation or storage
system must meet the requirements of
this paragraph, and remain available as
long as required by the Act and these
regulations.
(5) For each electronic generation or
storage system used, the person or entity
retaining the Form I–9 must maintain,
and make available upon request,
complete descriptions of:
(i) The electronic generation and
storage system, including all procedures
relating to its use; and
(ii) The indexing system.
(6) An ‘‘indexing system’’ for the
purposes of paragraphs (e)(1)(iv) and
(e)(5) of this section is a system that
permits the identification and retrieval
for viewing or reproducing of relevant
books and records maintained in an
electronic storage system. For example,
an indexing system might consist of
assigning each electronically stored
document a unique identification
number and maintaining a separate
database that contains descriptions of
all electronically stored books and
records along with their identification
numbers. In addition, any system used
to maintain, organize, or coordinate
multiple electronic storage systems is
treated as an indexing system. The
requirement to maintain an indexing
system will be satisfied if the indexing
system is functionally comparable to a
reasonable hardcopy filing system. The
requirement to maintain an indexing
system does not require that a separate
electronically stored books and records
description database be maintained if
VerDate Aug<31>2005
14:45 Jun 14, 2006
Jkt 208001
comparable results can be achieved
without a separate description database.
(7) Any person or entity choosing to
retain completed Forms I–9
electronically may use reasonable data
compression or formatting technologies
as part of the electronic storage system
as long as the requirements of 8 CFR
274a.2 are satisfied.
(8) At the time of an inspection, the
person or entity required to retain
completed Forms I–9 must:
(i) Retrieve and reproduce (including
printing copies on paper, if requested)
only the Forms I–9 electronically
retained in the electronic storage system
and supporting documentation
specifically requested by an agency of
the United States, along with associated
audit trails. Generally, an audit trail is
a record showing who has accessed a
computer system and the actions
performed within or on the computer
system during a given period of time,
and
(ii) Provide a requesting agency of the
United States with the resources (e.g.,
appropriate hardware and software,
personnel and documentation)
necessary to locate, retrieve, read, and
reproduce (including paper copies) any
electronically stored Forms I–9, any
supporting documents, and their
associated audit trails, reports, and
other data used to maintain the
authenticity, integrity, and reliability of
the records.
(iii) Provide, if requested, any
reasonably available or obtainable
electronic summary file(s), such as a
spreadsheet, containing all of the
information fields on all of the
electronically stored Forms I–9
requested by a requesting agency of the
United States.
(f) Documentation.
(1) A person or entity who chooses to
complete and/or retain Forms I–9
electronically must maintain and make
available to an agency of the United
States upon request documentation of
the business processes that:
(i) Create the retained Forms I–9;
(ii) Modify and maintain the retained
Forms I–9; and
(iii) Establish the authenticity and
integrity of the Forms I–9, such as audit
trails.
(2) Insufficient or incomplete
documentation is a violation of section
274A(a)(1)(B) of the Act.
(3) Any officer listed in 8 CFR 287.4
may issue a subpoena to compel
production of any documentation
required by 8 CFR 274a.2. Nothing in
this section is intended to limit the
subpoena power of an agency of the
United States under section 235(a) of
the Act.
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Fmt 4700
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(g) Security.
(1) Any person or entity who elects to
complete or retain Forms I–9
electronically must implement an
effective records security program that:
(i) Ensures that only authorized
personnel have access to electronic
records;
(ii) Provides for backup and recovery
of records to protect against information
loss, such as power interruptions;
(iii) Ensures that employees are
trained to minimize the risk of
unauthorized or accidental alteration or
erasure of electronic records; and
(iv) Ensure that whenever the
electronic record is created, accessed,
viewed, updated, or corrected, a secure
and permanent record is created that
establishes the date of access, the
identity of the individual who accessed
the electronic record, and the particular
action taken.
(2) An action or inaction resulting in
the unauthorized alteration, loss, or
erasure of electronic records, if it is
known, or reasonably should be known,
to be likely to have that effect, is a
violation of section 274A(b)(3) of the
Act.
(h) Electronic signatures for employee.
(1) If a Form I–9 is completed
electronically, the attestations in Form
I–9 must be completed using a system
for capturing an electronic signature
that meets the standards set forth in this
paragraph. The system used to capture
the electronic signature must include a
method to acknowledge that the
attestation to be signed has been read by
the signatory. The electronic signature
must be attached to, or logically
associated with, an electronically
completed Form I–9. In addition, the
system must:
(i) Affix the electronic signature at the
time of the transaction;
(ii) Create and preserve a record
verifying the identity of the person
producing the signature; and
(iii) Provide a printed confirmation of
the transaction, at the time of the
transaction, to the person providing the
signature.
(2) Any person or entity who is
required to ensure proper completion of
a Form I–9 and who chooses electronic
signature for a required attestation, but
who has failed to comply with the
standards set forth in this paragraph, is
deemed to have not properly completed
the Form I–9, in violation of section
274A(a)(1)(B) of the Act and 8 CFR
274a.2(b)(2).
(i) Electronic signatures for employer,
recruiter or referrer, or representative. If
a Form I–9 is completed electronically,
the employer, the recruiter or referrer
for a fee, or the representative of the
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employer or the recruiter or referrer,
must attest to the required information
in Form I–9. The system used to capture
the electronic signature should include
a method to acknowledge that the
attestation to be signed has been read by
the signatory. Any person or entity who
has failed to comply with the criteria
established by this regulation for
electronic signatures, if used, and at the
time of inspection does not present a
properly completed Form I–9 for the
employee, is in violation of section
274A(a)(1)(B) of the Act and 8 CFR
274a.2(b)(2).
Dated: June 8, 2006.
Michael Chertoff,
Secretary.
[FR Doc. E6–9283 Filed 6–14–06; 8:45 am]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
[Docket No. APHIS–2006–0020]
States Approved To Receive Stallions
and Mares From CEM-Affected
Regions; Indiana
Animal and Plant Health
Inspection Service, USDA.
ACTION: Direct final rule; confirmation of
effective date.
AGENCY:
cprice-sewell on PROD1PC66 with RULES
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 23
[Docket No. CE249; Special Conditions No.
23–189–SC]
Federal Aviation
Administration (FAA), DOT.
ACTION: Final special conditions; request
for comments.
AGENCY:
9 CFR Part 93
SUMMARY: On April 27, 2006, the
Animal and Plant Health Inspection
Service published a direct final rule.
(See 71 FR 24806–24808.) The direct
final rule notified the public of our
intention to amend the animal
importation regulations by adding
Indiana to the lists of States approved to
receive certain stallions and mares
imported into the United States from
regions affected with contagious equine
metritis. We did not receive any written
adverse comments regarding the
addition of Indiana to those lists or
written notice of intent to submit
adverse comments in response to the
direct final rule.
DATES: Effective Date: The effective date
of the direct final rule is confirmed as
June 26, 2006.
FOR FURTHER INFORMATION CONTACT: Dr.
Freeda E. Isaac, Senior Staff
Veterinarian, National Center for Import
and Export, VS, APHIS, 4700 River
Road Unit 39, Riverdale, MD 20737–
1231; (301) 734–8364.
Authority: 7 U.S.C. 1622 and 8301–8317;
21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7
CFR 2.22, 2.80, and 371.4.
14:45 Jun 14, 2006
BILLING CODE 3410–34–P
Special Conditions: Societe de
Motorisation Aeronautiques (SMA)
Engines, Cessna Models 182Q and
182R: Installation of Model SR305–230
Aircraft Diesel Engine for Full
Authority Digital Engine Control
(FADEC) System and the Protection of
the System From the Effects of High
Intensity Radiated Fields (HIRF)
BILLING CODE 4410–10–P
VerDate Aug<31>2005
Done in Washington, DC, this 9th day of
June 2006.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E6–9350 Filed 6–14–06; 8:45 am]
Jkt 208001
SUMMARY: This proposes special
conditions for the Cessna Models 182Q
and 182R airplanes with a Societe de
Motorisation Aeronautiques (SMA)
Model SR305–230 aircraft diesel engine
(ADE). The supplemental type
certificate for these airplanes will have
a novel or unusual design feature
associated with the installation of an
aircraft diesel engine that uses an
electronic engine control system instead
of a mechanical control system. The
applicable airworthiness regulations do
not contain adequate or appropriate
safety standards for this design feature.
These special conditions contain the
additional safety standards that the
Administrator considers necessary to
establish a level of safety equivalent to
that established by the existing
airworthiness standards.
DATES: The effective date of these
special conditions is June 7, 2006.
Comments must be received on or
before July 17, 2006.
ADDRESSES: Comments on the special
conditions may be mailed in duplicate
to: Federal Aviation Administration
(FAA), Regional Counsel, ACE–7,
Attention: Rules Docket, Docket No.
CE249, 901 Locust, Room 506, Kansas
City, Missouri 64106, or delivered in
duplicate to the Regional Counsel at the
above address. Comments must be
marked: Docket No. CE249. Comments
may be inspected in the Rules Docket
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34517
weekdays, except Federal holidays,
between 7:30 a.m. and 4 p.m.
FOR FURTHER INFORMATION CONTACT:
Peter L. Rouse, Federal Aviation
Administration, Aircraft Certification
Service, Small Airplane Directorate,
ACE–111, 901 Locust, Room 301,
Kansas City, Missouri 64106; telephone:
816–329–4135, fax: 816–329–4090.
The FAA
has determined that notice and
opportunity for prior public comment
hereon are impracticable because these
procedures would significantly delay
issuance of the design approval and
thus delivery of the affected aircraft. In
addition, the substance of these special
conditions has been subject to the
public comment process in several prior
instances with no substantive comments
received. The FAA, therefore, finds that
good cause exists for making these
special conditions effective upon
issuance.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to
submit such written data, views, or
arguments as they may desire.
Communications should identify the
regulatory docket or special condition
number and be submitted in duplicate
to the address specified above. All
communications received on or before
the closing date for comments will be
considered by the Administrator. The
special conditions may be changed in
light of the comments received. All
comments received will be available in
the Rules Docket for examination by
interested persons, both before and after
the closing date for comments. A report
summarizing each substantive public
contact with FAA personnel concerning
this rulemaking will be filed in the
docket. Commenters wishing the FAA to
acknowledge receipt of their comments
submitted in response to this notice
must include a self-addressed, stamped
postcard on which the following
statement is made: ‘‘Comments to
Docket No. CE249.’’ The postcard will
be date stamped and returned to the
commenter.
Background
On March 19, 2004, the Societe de
Motorisation Aeronautiques Engines,
Inc. applied for Supplemental Type
Certification of Cessna Models 182Q
and 182R airplanes for the installation
of an SMA Model SR305–230. The
airplane is powered by a SMA Model
SR305–230 that is equipped with an
electronic engine control system with
full authority capability in these
airplanes.
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Agencies

[Federal Register Volume 71, Number 115 (Thursday, June 15, 2006)]
[Rules and Regulations]
[Pages 34510-34517]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-9283]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Bureau of Immigration and Customs Enforcement
8 CFR Part 274a
[BICE 2345-05; DHS-2005-0046]
RIN 1653-AA47
Electronic Signature and Storage of Form I-9, Employment
Eligibility Verification
AGENCY: Bureau of Immigration and Customs Enforcement, DHS.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim rule amends Department of Homeland Security
regulations to provide that employers and recruiters or referrers for a
fee who are required to complete and retain Forms I-9, Employment
Eligibility Verification, may sign and retain these forms
electronically. This interim rule implements statutory changes to the
Form I-9 retention requirements by establishing standards for
electronic signatures and the electronic retention of the Form I-9.
DATES: Effective Date: This interim rule is effective June 15, 2006.
Comment Date: Written comments must be submitted on or before
August 14, 2006.
ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Jim Knapp, Associate Legal Advisor, Bureau of
Immigration and Customs Enforcement, Room 6100, 425 I. St., NW.,
Washington, DC 20536.
FOR FURTHER INFORMATION CONTACT: Jim Knapp, Associate Legal Advisor,
Bureau of Immigration and Customs Enforcement, Room 6100, 425 I St.,
NW., Washington, DC 20536. Telephone (202) 514-8138 (not a toll-free
number).
SUPPLEMENTARY INFORMATION
I. Background
A. Employment Eligibility Verification Requirement
Section 274A of the Immigration and Nationality Act (Act), 8 U.S.C.
1324a, requires all United States employers, agricultural associations,
agricultural employers, farm labor contractors, or persons or other
entities who recruit or refer persons for employment for a fee, to
verify the employment eligibility and identity of all employees hired
to work in the United States after November 6, 1986. To comply with the
law, an employer, or a recruiter or referrer for a fee, is responsible
for the completion of an Employment Eligibility Verification form (Form
I-9) for all employees, including United States citizens. 8 CFR 274a.2.
Completed Forms I-9 are not filed with the Federal Government;
instead, the completed I-9 form is retained by the employer. Employers
are required to retain Forms I-9 in their own files for three years
after the date of hire of the employee or one year after the date that
employment is terminated, whichever is later. 8 CFR 274a.2(c)(2).
Recruiters or referrers for a fee are required to retain the Forms I-9
for three years after the date of hire. Id. at (d)(2). The failure to
properly complete and retain the Forms I-9 subjects the employer to
civil money penalties. Section 274A of the Act, 8 U.S.C. 1324a(e)(5).
B. Format of the Form I-9
Form I-9 has been made available to the public in numerous paper
and electronic means since 1986. The Form I-9 is currently available
online at the U.S. Citizenship and Immigration Services (USCIS) Web
site at (http://www.uscis.gov) as a Portable Document Format (.pdf)
fillable--printable form http://uscis.gov/graphics/formsfee/forms/
files/i-9.pdf. In short, an employer or employee can retrieve the form,
type the required information into it for a prospective employee, and
print it. The form may then be retained in paper, microfilm, or
microfiche form. In conjunction with this interim rule, the Department
of Homeland Security (DHS) is upgrading the downloadable PDF version of
Form I-9 to enable employers and employees to electronically sign and
save the filled Form I-9. This provides employers an additional option
for convenience and savings. This PDF version of Form I-9 complies with
the electronic form requirements of this rule.
However, existing DHS regulations do not permit the form to be
completed and stored electronically as an original record. On October
30, 2004, Public Law 108-390, 11 Stat. 2242, authorized employers to
retain Forms I-9 in electronic format, effective April 29, 2005, or the
effective date of implementing regulations, whichever occurred first.
The legislation also allows employers and employees to manifest
attestations using electronic signature technology.
This interim rule conforms the regulations to the requirements of
Public Law 108-390 and permits employers to complete, sign, and store
Forms I-9 electronically, as long as certain performance standards set
forth in this interim rule for the electronic filing system are met.
This interim rule also permits employers to electronically scan and
store existing Forms I-9, as long as standards set forth in this
interim rule for the electronic storage system are met. The interim
rule adopts performance standards that have been proven by other
agencies in the past and provides flexibility for employers to choose a
method of retention that is the most economically feasible for their
specific business. Utilizing the most widely applicable standards,
those adopted by the Internal Revenue Service (IRS) for tax records,
provides the widest possible cost savings within the business community
because of existing compliance with those standards.
C. Electronic Recordkeeping Standards
There is no single United States Government-wide electronic
recordkeeping standard for recordkeeping by private individuals and
entities. However, some United States Government agencies provide
electronic recordkeeping standards for use in transactions with that
agency. These standards provide a baseline for proven practices. To the
extent that these standards are applicable to the electronic storage of
Form I-9, DHS attempts to use the requirements and language of existing
standards. At the same time, DHS recognizes that systems for electronic
recordkeeping develop rapidly with the creation of new storage
mechanisms, mediums, and methods. Accordingly, the standards adopted in
this rule are ``product neutral'' and will guide the application of new
products to meet minimum performance standards, rather than
establishing specific requirements.
[[Page 34511]]
The Internal Revenue Service's Rev. Proc. 97-22, 1997-1 C.B. 652,
1997-13 I.R.B. 9 (March 31, 1997), and Rev. Proc. 98-25, 1998-1 C.B.
689, 1998-11 I.R.B. 7 (March 16, 1998), specify electronic
recordkeeping standards for taxpayers. This regulation closely follows
the widely accepted electronic storage standards and requirements set
forth in the IRS Rulings previously published. The derivation of the
substantive standards of this interim rule is set forth below.
Derivation of Substantive Standards for Electronic Retention of Form I-9
------------------------------------------------------------------------
Source of
Provision of this rule provision Description of provision
------------------------------------------------------------------------
8 CFR 274a.2(e)(1)........... Rev. Proc. 97- Requirements for the
22, section electronic generation
4.01(2). or storage system.
8 CFR 274a.2(e)(2)........... Rev. Proc. 97- Requires reproduced
22, section documents to exhibit a
4.01(3). high degree of
legibility and
readability.
8 CFR 274a.2(e)(3)........... Rev. Proc. 97- Requires that any
22, section electronic storage
4.01(7). system must not be
subject to any
agreement that would
limit or restrict the
relevant Government
personnel's access or
use on the premises.
8 CFR 274a.2(e)(4)........... Rev. Proc. 97- Allows use of multiple
22, section electronic systems so
4.01(9). long as each meets the
relevant standards.
8 CFR 274a.2(e)(5)........... Rev. Proc. 97- Requires that
22, section descriptions of the
4.01(5). system, including
procedures for use and
indexing systems, be
maintained and made
available upon request.
8 CFR 274a.2(e)(6)........... Rev. Proc. 97- Defines indexing system
22, section that complies with
4.02(1). requirements.
8 CFR 274a.2(e)(7)........... Rev. Proc. 97- Permits reasonable data
22, section compression and
4.01(10). formatting
technologies.
8 CFR 274a.2(e)(8)........... Rev. Proc. 97- Requirements for
22, section inspection.
4.01(6).
------------------------------------------------------------------------
The widespread application of these IRS standards by the business
community is the critical reason for adoption of these standards. This
adoption of existing standards should reduce any potential burden on
the portion of the business community that decides to utilize
electronic retention.
In 17 CFR 240.17a4, the Securities and Exchange Commission (SEC)
specifies electronic recordkeeping standards for certain exchange
members, brokers and dealers. DHS did not incorporate specific language
from the SEC provisions; however, it did find them instructive on how
to establish electronic systems. In particular, 8 CFR 240.17a4(f)
provides instruction on audit and indexing systems that employers could
find helpful when complying with the similar provisions set forth in
this regulation.
Also instructive are the regulations of the National Archives and
Records Administration found in 36 CFR part 1234, which set standards
for federal agencies to use in order to enhance the trustworthiness of
an agency's own electronic records and their admissibility as evidence
in court proceedings. Employers utilizing electronic retention and
signature technology for Form I-9 may find it helpful to review system
requirements placed upon Federal agencies. These standards define terms
of art related to the requirements of this regulation and provide
information that could help guide businesses establish security and
maintenance procedures for electronic records.
Using precedents set by 36 CFR part 1234 and other United States
Government agencies, this interim rule provides a reasonable set of
standards for creating a trustworthy system for Form I-9 completion and
storage. The standards are technology neutral, and allow businesses the
flexibility to keep records in a manner consistent with other business
processes. They also provide DHS investigators with a framework for
inspecting the records and assessing their trustworthiness.
DHS is working with the IRS to develop audit protocols to minimize
requirements on businesses to provide information from Forms I-9 when
the DHS Bureau of Immigration and Customs Enforcement (ICE) determines
that audit and review is necessary.
D. Development of the Rule
After the President signed Public Law 108-390, a working group was
established within DHS, consisting of representatives from ICE and
USCIS. This regulation was developed, drawing upon work begun under the
legacy Immigration and Naturalization Service, as well as relying on
standards developed by other Federal agencies utilizing electronic
retention and signature methods. On December 10, 2004, at the request
of the United States Chamber of Commerce, DHS representatives met with
the Electronic I-9 Coalition. This Coalition consisted of
representatives from a wide array of business interests. The Chamber of
Commerce facilitated the meeting so the Coalition members could express
views to DHS regarding the importance of the statute and to offer
insight on methods of storage and attestation being contemplated by the
business community. DHS representatives listened to the views
presented, but could not offer any guidance on specific aspects of the
regulation. DHS has carefully considered the views expressed and, to
the extent practical and in the public interest, incorporated those
suggestions. There are a number of potential advantages that employers
may gain through use of electronic Forms I-9. Many employers may
experience cost savings by storing Forms I-9 electronically rather than
using conventional filing and storage of paper copies or transferring
the forms to microfilm or microfiche. Electronic forms may allow
employers to better ensure that each Form I-9 is properly completed and
retained. Some employers may find that electronic completion and
storage renders the process less prone to error. Electronically
retained Forms I-9 are more easily searchable, which is important for
re-verification, quality assurance and inspection purposes. This will
be especially helpful and cost-effective for large employers that have
job sites across the country or that have high employee turnover rates.
On April 26, 2005, a fact sheet was published on the ICE Web site
to provide information on the development of the regulation based on
IRS Revenue Procedure 97-22. The fact sheet included suggested
standards established by IRS, and advantages for using electronic
signature and retention of Form I-9.
E. Employer Compliance
An employer that is currently complying with the recordkeeping and
retention requirements of current 8 CFR 274.2 is not required to take
any additional or different action to comply
[[Page 34512]]
with the revised rules. The revised rules offer an additional option.
Businesses will be permitted to adopt one or more of a number of
different electronic recordkeeping, attestation, and retention systems
that are compliant with the existing IRS standards.
For example, a small business may wish to download and retain .pdf
versions of the employment verification record. DHS made this system
available on the USCIS Web site.
Employers who already utilize electronic data recordkeeping as part
of their accounting and tax functions may expand those functions to
include the employment verification process. As long as the electronic
records system remains IRS-compliant, the system will be ICE-compliant.
F. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. DHS also invites comments that relate to the economic,
environmental, or federalism affects that might result from this
proposed rule. Comments that will provide the most assistance to DHS in
developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected at the street at the address noted above by
making an appointment with the individual listed as the individual to
contact for further information.
II. Regulatory Requirements
A. Administrative Procedure Act (Good Cause Exception)
Implementation of this rule as an interim rule effective on June
15, 2006, with a request for public comment after the effective date of
the rule is based upon the ``good cause'' exceptions found under the
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B) and (d)(3). DHS
has determined that delaying implementation of this rule until after a
period for public notice and comment, analysis of the public comments
(if any), preparation of a final rule, and providing a delayed post-
publication effective date of at least 30 days, are impracticable and
contrary to the public interest for the following reasons:
This regulation adopts existing, widely-utilized standards for
electronic recordkeeping to permit any employer who is required to
retain Form I-9, to retain that form in an electronic format. Because
of the widespread application of the same rules required to establish
taxable income and other matters within the jurisdiction of the IRS in
the larger accounting context, it is impractical to adopt differing
rules for a specific set of employment forms. Accordingly, providing an
opportunity for notice and comment on whether to adopt such widely
accepted standards is impractical and unnecessary. Also, the rule
provides additional optional methods for complying with an existing
requirement. The methods may be utilized or not utilized, in the
discretion of the employer. Therefore, a delayed effective date is not
necessary.
DHS recognizes that the effective date of the underlying statute
authorizing electronic retention of Form I-9 was April 28, 2005. DHS
will not require that forms created between that date and the effective
date of the rule must comply with this rule. If an audit of such
records is required, DHS will permit the employer to provide the forms
in paper form; this rule does not require that any employer use an
electronic record keeping system.
Moreover, as far as DHS can determine at this time, ``off the
shelf'' computer programs and commercial automated data processing
systems in use comply with the standards required by this rule. DHS is
not aware of systems that would not immediately be useable under the
regulations.
Accordingly, DHS finds that no employer required to retain Form I-9
would be adversely affected by the adoption of this rule without pre-
promulgation notice and comment or a delayed effective date.
DHS nevertheless invites comments on this interim rule and will
consider all timely comments in the preparation of a final rule. In
particular, DHS is interested in identifying whether any existing
systems for electronic record keeping do not comply with these
standards in order to adjust the standards or provide a means to
resolving any discrepancies.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) mandates that DHS conduct an
RFA analysis when an agency is ``required by section 553, or any other
law, to publish general notice of proposed rulemaking for any proposed
rule.'' 5 U.S.C. 603(a). RFA analysis is not required when a rule is
exempt from notice and comment rulemaking under 5 U.S.C. 553(b). DHS
has determined that good cause exists under 5 U.S.C. 553(b)(B) to
exempt this rule from the notice and comment requirements of 5 U.S.C.
553(b). Therefore, no RFA analysis under 5 U.S.C. 603 is required for
this rule.
C. Unfunded Mandates Reform Act of 1995
This interim rule will not result in an expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This interim rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
interim rule will not result in an annual effect of $100 million or
more on the economy; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets. Since utilizing electronic signature and storage
technologies are optional, DHS expects that small businesses will only
choose electronic methods if they will save costs and/or lessen overall
burden. Providing this option should, therefore, have a net cost-saving
effect to small businesses.
E. Executive Order 12866 (Regulatory Planning and Review)
This interim rule is considered by DHS to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. Accordingly, the rule has been
submitted to the Office of Management and Budget (OMB) for review.
DHS has assessed both the cost and benefits of this interim rule as
required by Executive Order 12866 section 1(b)(6), and has made a
reasoned determination that the benefits of this interim rule justify
its costs to the public and Government. In fact, DHS anticipates that
both the public and
[[Page 34513]]
Government will experience a net cost savings as a result of this rule.
Whether to store Forms I-9 in an electronic format will be within the
discretion of the employer or the recruiter or referrer for a fee--
those that are already required under 8 CFR 274a.2 to retain the Forms
I-9.
The number of Forms I-9 maintained throughout the country is
extremely large. Storage of Forms I-9 to meet the statutory retention
requirement may require the employer to make a significant investment
in personnel and storage space. Currently, storage costs for the paper
Form I-9 vary, depending on the storage facility used and the number of
Forms I-9 that must be stored. DHS believes that Form I-9 storage costs
are highest with large employers or those who have a high employee
attrition rate. At an estimated employer total labor cost of $20 per
hour, employer burden savings are estimated to be $13,000,000 annually.
DHS considers this a conservative estimate, which is based on agency
experience since the Form I-9 requirement was implemented. Further, we
expect that some employers will have capital costs at the outset,
depending on the size and complexity of the system chosen. DHS is
unable to estimate possible capital costs as these could vary widely as
employers implement a range of electronic options, from simply using a
scanner to electronically retain a completed Form I-9 to a complex
database that facilitates electronic completion, attestation,
retention, production, etc.
Employers utilizing electronic Forms I-9 will bear additional costs
associated with the documentation that this rule requires to establish
the integrity of the electronic Form I-9 process chosen. This is an
initial cost to the employer and will vary depending on the
sophistication and capacity of each system deployed. The documentation
necessary should accompany the software and hardware being used by the
employer to implement the electronic Form I-9.
For employers responsible for a significant number of Forms I-9,
these costs are expected to be lower than the costs associated with
retaining Forms I-9 in paper format. For employers who do not have a
large number of Forms I-9 to retain, utilizing an electronic Form I-9
may not be economical. However, the benefits of using an electronic
Form I-9 extend beyond storage space. DHS believes that employers using
electronic Forms I-9 will improve their accuracy rate. By completing
and/or storing Forms I-9 electronically, employers will be better able
to self-audit Forms I-9 in order to detect and correct errors.
Employers could create an electronic process for Form I-9 completion
that minimizes the possibility of errors. The process could include
prompts that preclude the user from completing the rest of the form
until an acceptable response is provided. Employers would also be
better able to create a reliable system to re-verify an employee's
employment authorization when it is about to expire. The forms could be
stored on a computer maintained onsite rather than in boxes off-site or
other difficult-to-access locations, which DHS has observed when
conducting past Form I-9 audits. Electronically stored forms could be
presented for review in a matter of minutes rather than the lengthy
period required to access paper or microfiche archives. While employers
converting to an electronic Form I-9 format may incur initial costs,
DHS anticipates that employers who use an electronic Form I-9 system
tailored to their needs will generally achieve a net cost-savings in
both the short term and long term. In addition, DHS anticipates that
its Form I-9 audits will reveal a lower error rate. This should
translate into a more efficient employment eligibility verification
process for employers and, therefore, a lower incidence of unauthorized
workers in the workplace. In recent years, DHS has received many
queries from the employer community regarding the possibility of using
electronic Forms I-9, with electronic attestation, and storing the
forms electronically. Employers have expressed their frustration with
the requirement to keep paper forms or maintain the forms on microfilm
or microfiche when all other aspects of their businesses have been
automated.
For some employers, particularly small employers, retaining the
paper Form I-9 may continue to be the most cost-effective and efficient
storage method. This rule does not eliminate this option or discourage
employers from using it. The paper Form I-9 has the advantage of
recording the unique signature of the employee and of the employer
representative. This interim rule does not make any change to the
current paper Form I-9 process. Additionally, employers can utilize a
combination of paper and electronic methods for fulfilling the Form I-9
requirements. For example, an employer can complete the paper Form I-9
and use a scanner to retain electronically. Conversely, an employer can
choose to complete the Form I-9 electronically and retain the printed
form.
For the Government, amending the regulations to permit the
electronic signatures and retention of Form I-9 has many advantages,
particularly with respect to DHS's enforcement efforts. When conducting
audits, DHS will be able to receive Forms I-9 electronically, rather
than using staff resources to physically appear at a worksite. Once the
Form I-9 data is received electronically, DHS will have increased
flexibility in how it reviews and analyzes them. DHS will be able to
more easily compare data among multiple audits to locate unauthorized
workers, and store audit records for easy access. When investigating
the presence of unauthorized workers in the workplace, employers
violating the immigration laws, or national security risks, DHS will
have this information immediately available and with less risk of human
error. Additionally, there are circumstances in which the Department of
Labor and the Department of Justice, Office of Special Counsel for
Immigration-Related Unfair Employment Practices, access Forms I-9 in
order to exercise their responsibilities.
DHS anticipates that its own additional costs will be minimal. DHS
currently inputs Form I-9 information manually into a database. If an
employer chooses to electronically retain Form I-9, then the rule's
requirement that Form I-9 information be presented in a particular
electronic format will enable the electronic transfer of information
from employer to DHS to be nearly instantaneous. Therefore, rather than
invest DHS investigator time in data entry, investigators will be free
to conduct more-thorough investigations.
Once employers begin to utilize electronic Forms I-9 and the
various electronic Form I-9 storage options, DHS will be able to better
gauge what additional or alternative database and storage options would
further increase the efficiency of its investigations. At present, DHS
will utilize current systems to implement this rule.
This rule does not limit employers to using one system for the
storage of Forms I-9 electronically, nor does it identify one method
for acceptable electronic signatures. Instead, this rule seeks to set
acceptable standards for employers. Electronic signatures can be
accomplished using various technologies including, but not limited to,
electronic signature pads, Personal Identification Numbers (PIN),
biometrics, and ``click to accept'' dialog boxes. DHS considered
specifying acceptable technologies, but rejected this alternative as
being too inflexible for employers' needs and economic means. Moreover,
to specify a particular technology would require continuous
[[Page 34514]]
amendments to the regulations reflecting the rapid changes in
technology. DHS concluded that this approach would be impractical and
detrimental to employers since it would require continuous and
potentially costly changes to employers' business practices.
F. Executive Order 13132 (Federalism)
This interim rule will not have a substantial direct effect on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of Government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this interim rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.,
all Departments are required to submit any reporting or recordkeeping
requirements inherent in a rule to the Office of Management and Budget
(OMB) for review and approval. This interim rule requires employers to
complete the Form I-9 which has been approved for use by OMB (OMB
Control Number 1615-0047); it also permits the employer to continue to
retain the Form I-9 in paper, microfiche, or microfilm, and allows a
new option: to retain the Form I-9 electronically. The DHS believes
that storing the I-9 electronically will reduce the burden on
businesses by 650,000 hours (see discussion below). Accordingly, DHS
submitted the required Paperwork Reduction Change Worksheet (OMB-83C)
to the Office of Management and Budget (OMB) reflecting the reduction
in burden hours for Form I-9, and the OMB has approved the changes.
DHS estimates that there will be a total of 78,000,000 respondents
annually who will complete the required Form I-9 in either paper or
electronic format. DHS has estimated that it takes 9 minutes to gather
the required evidence to complete the paper Form I-9 and an additional
4 minutes for employer verification, filing and storage. Because this
regulation is technology neutral, it is difficult for DHS to estimate
the average time required to complete a Form I-9 electronically, as
completion methods may vary widely depending upon the range of systems
implemented by employers. However, DHS does not believe the time per
respondent will change significantly as the documentation required is
unchanged. Many businesses could reduce the time burden by using an
electronic Form I-9, as the documentation could be collected from an
employee in conjunction with other types of personnel forms (i.e., tax
withholding forms, insurance and other benefit forms) that require
similar personal information.
For employers who choose electronic retention methods for the Form
I-9, DHS does expect a burden reduction. DHS previously estimated that
employers spend four minutes per form to verify and file. We project
that half of the estimated 78,000,000 Forms I-9 completed annually will
involve some method of electronic generation or retention. Employers
utilizing at least a partial electronic process for retention of the
Form I-9 should save a minimum of one minute of burden time per form
based on the previous estimate of 4 minutes per form for verification
and filing. Based on 39,000,000 Forms I-9, the total labor hours saved
would be 650,000 hours annually.
Under 8 CFR 274a.2(e) through (i), any employer who stores Form I-9
electronically or any employer that applies an electronic signature to
the Form I-9 must demonstrate that its electronic storage system is
properly maintained and protected against tampering, and that any
electronic signature can be authenticated. In addition, an employer or
entity who chooses to complete and/or retain Forms I-9 electronically
must maintain, and make available to the Department upon request,
documentation of the business process that: (1) Creates the retained
Forms I-9; (2) Modifies and maintains the retained Forms I-9; and (3)
Establishes the authenticity and integrity of the Forms I-9, such as
audit trails. These additional requirements are considered information
collections under the Paperwork Reduction Act. These requirements are
reflected in the Paperwork Reduction Change Worksheet (Form OMB 83-C)
that has been submitted to OMB and that specifies the estimated net
reduction in burden hours that will result from this rule.
List of Subjects in 8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
0
Accordingly, part 274a of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
1. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
0
2. Section 274a.2 is amended:
0
a. By revising paragraph (a);
0
b. By revising paragraph (b)(1)(i)(A);
0
c. By revising paragraph (b)(1)(ii)(B);
0
d. By revising the last sentence in paragraph (b)(1)(iv);
0
e. By revising the last sentence of paragraph (b)(1)(vii);
0
f. By revising paragraph (b)(2)(i) introductory text;
0
g. By revising paragraph (b)(2)(ii);
0
h. By adding paragraph (b)(2)(iv);
0
i. By revising paragraph (b)(3);
0
j. By adding the term ``or electronic images'' immediately after
``copies'' in paragraph (b)(4); and
0
k. By adding new paragraphs (e), (f), (g), (h), and (i).
The revisions and additions read as follows:
Sec. 274a.2 Verification of employment eligibility.
(a) General. This section establishes requirements and procedures
for compliance by persons or entities when hiring, or when recruiting
or referring for a fee, or when continuing to employ individuals in the
United States.
(1) Recruiters and referrers for a fee. For purposes of complying
with section 274A(b) of the Act and this section, all references to
recruiters and referrers for a fee are limited to a person or entity
who is either an agricultural association, agricultural employer, or
farm labor contractor (as defined in section 3 of the Migrant and
Seasonal Agricultural Worker Protection Act, Pub. L. 97-470 (29 U.S.C.
1802)).
(2) Verification form. Form I-9, Employment Eligibility
Verification Form, is used in complying with the requirements of this 8
CFR 274a.1--274a.11. Form I-9 can be in paper or electronic format. In
paper format, the Form I-9 may be obtained in limited quantities at
USCIS district offices, or ordered from the Superintendent of
Documents, Washington, DC 20402. In electronic format, a fillable
electronic Form I-9 may be downloaded from http://www.uscis.gov.
Alternatively, Form I-9 can be electronically generated or retained,
provided that the resulting form is legible; there is no change to the
name, content, or sequence of the data elements and instructions; no
additional
[[Page 34515]]
data elements or language are inserted; and the standards specified
under 8 CFR 274a.2(e), (f), (g), (h), and (i), as applicable, are met.
When copying or printing the paper Form I-9, the text of the two-sided
form may be reproduced by making either double-sided or single-sided
copies.
(3) Attestation Under Penalty and Perjury. In conjunction with
completing the Form I-9, an employer or recruiter or referrer for a fee
must examine documents that evidence the identity and employment
eligibility of the individual. The employer or recruiter or referrer
for a fee and the individual must each complete an attestation on the
Form I-9 under penalty of perjury.
(b) * * *
(1) * * *
(i) * * *
(A) Completes section 1--``Employee Information and
Verification''--on the Form I-9 at the time of hire and signs the
attestation with a handwritten or electronic signature in accordance
with paragraph (h) of this section; or if an individual is unable to
complete the Form I-9 or needs it translated, someone may assist him or
her. The preparer or translator must read the Form I-9 to the
individual, assist him or her in completing Section 1--``Employee
Information and Verification,'' and have the individual sign or mark
the Form I-9 by a handwritten signature, or an electronic signature in
accordance with paragraph (h) of this section, in the appropriate
place; and
* * * * *
(ii) * * *
(B) Complete section 2--``Employer Review and Verification''--on
the Form I-9 within three days of the hire and sign the attestation
with a handwritten signature or electronic signature in accordance with
paragraph (i) of this section.
* * * * *
(iv) * * * If a recruiter or referrer designates an employer to
complete the employment verification procedures, the employer need only
provide the recruiter or referrer with a photocopy or printed
electronic image of the Form I-9, electronic Form I-9, or a Form I-9 on
microfilm or microfiche.
* * * * *
(vii) * * * The employer or the recruiter or referrer for a fee
must review this document, and if it appears to be genuine and relate
to the individual, re-verify by noting the document's identification
number and expiration date, if any, on the Form I-9 and signing the
attestation by a handwritten signature or electronic signature in
accordance with paragraph (i) of this section.
* * * * *
(2) * * *
(i) A paper (with original handwritten signatures), electronic
(with acceptable electronic signatures that meet the requirements of
paragraphs (h) and (i) of this section or original paper scanned into
an electronic format that meets the requirements of 8 CFR 274a.2(e),
(f), and (g)), or microfilm or microfiche copy of the original signed
version of the Form I-9 must be retained by an employer or a recruiter
or referrer for a fee for the following time periods:
* * * * *
(ii) Any person or entity required to retain Forms I-9 in
accordance with this section shall be provided with at least three days
notice prior to an inspection of the Forms I-9 by officers of an
authorized agency of the United States. At the time of inspection,
Forms I-9 must be made available in their original paper, electronic
form, a paper copy of the electronic form, or on microfilm or
microfiche at the location where the request for production was made.
If Forms I-9 are kept at another location, the person or entity must
inform the officer of the authorized agency of the United States of the
location where the forms are kept and make arrangements for the
inspection. Inspections may be performed at an office of an authorized
agency of the United States. A recruiter or referrer for a fee who has
designated an employer to complete the employment verification
procedures may present a photocopy or printed electronic image of the
Form I-9 in lieu of presenting the Form I-9 in its original paper or
electronic form or on microfilm or microfiche, as set forth in
paragraph (b)(1)(iv) of this section. Any refusal or delay in
presentation of the Forms I-9 for inspection is a violation of the
retention requirements as set forth in section 274A(b)(3) of the Act.
No Subpoena or warrant shall be required for such inspection, but the
use of such enforcement tools is not precluded. In addition, if the
person or entity has not complied with a request to present the Forms
I-9, any officer listed in 8 CFR 287.4 may compel production of the
Forms I-9 and any other relevant documents by issuing a subpoena.
Nothing in this section is intended to limit the subpoena power under
section 235(a) of the Act.
* * * * *
(iv) Paragraphs (e), (f), (g), (h), and (i) of this section specify
the standards for electronic Forms I-9.
(3) Copying of documentation. An employer, or a recruiter or
referrer for a fee may, but is not required to, copy or make an
electronic image of a document presented by an individual solely for
the purpose of complying with the verification requirements of this
section. If such a copy or electronic image is made, it must be
retained with the Form I-9. The copying or electronic imaging of any
such document and retention of the copy or electronic image does not
relieve the employer from the requirement to fully complete section 2
of the Form I-9. An employer, recruiter or referrer for a fee should
not, however, copy or electronically image only the documents of
individuals of certain national origins or citizenship statuses. To do
so may violate section 274B of the Act.
(4) Limitation on use of Form I-9. Any information contained in or
appended to the Form I-9, including copies or electronic images of
documents listed in paragraph (c) of this section used to verify an
individual's identity or employment eligibility, may be used only for
enforcement of the Act and 18 U.S.C. 1001, 1028, 1546, or 1621.
* * * * *
(e) Standards for electronic retention of Form I-9. (1) Any person
or entity who is required by this section to complete and retain Forms
I-9 may complete or retain electronically Form I-9 in an electronic
generation or storage system that includes:
(i) Reasonable controls to ensure the integrity, accuracy and
reliability of the electronic generation or storage system;
(ii) Reasonable controls designed to prevent and detect the
unauthorized or accidental creation of, addition to, alteration of,
deletion of, or deterioration of an electronically completed or stored
Form I-9, including the electronic signature if used;
(iii) An inspection and quality assurance program evidenced by
regular evaluations of the electronic generation or storage system,
including periodic checks of the electronically stored Form I-9,
including the electronic signature if used;
(iv) In the case of electronically retained Forms I-9, a retrieval
system that includes an indexing system that permits searches by any
data element; and
(v) The ability to reproduce legible and readable hardcopies.
(2) All documents reproduced by the electronic retention system
must exhibit a high degree of legibility and readability when displayed
on a video display terminal or when printed on paper, microfilm, or
microfiche. The term ``legibility'' means the observer must be able to
identify all letters and
[[Page 34516]]
numerals positively and quickly, to the exclusion of all other letters
or numerals. The term ``readability'' means that the observer must be
able to recognize any group of letters or numerals that form words or
numbers as those words or complete numbers. The employer, or recruiter
or referrer for a fee, must ensure that the reproduction process
maintains the legibility and readability of the electronically stored
document.
(3) An electronic generation or storage system must not be subject,
in whole or in part, to any agreement (such as a contract or license)
that would limit or restrict access to and use of the electronic
generation or storage system by an agency of the United States, on the
premises of the employer, recruiter or referrer for a fee (or at any
other place where the electronic generation or storage system is
maintained), including personnel, hardware, software, files, indexes,
and software documentation.
(4) A person or entity who chooses to complete or retain Forms I-9
electronically may use more than one electronic generation or storage
system. Each electronic generation or storage system must meet the
requirements of this paragraph, and remain available as long as
required by the Act and these regulations.
(5) For each electronic generation or storage system used, the
person or entity retaining the Form I-9 must maintain, and make
available upon request, complete descriptions of:
(i) The electronic generation and storage system, including all
procedures relating to its use; and
(ii) The indexing system.
(6) An ``indexing system'' for the purposes of paragraphs
(e)(1)(iv) and (e)(5) of this section is a system that permits the
identification and retrieval for viewing or reproducing of relevant
books and records maintained in an electronic storage system. For
example, an indexing system might consist of assigning each
electronically stored document a unique identification number and
maintaining a separate database that contains descriptions of all
electronically stored books and records along with their identification
numbers. In addition, any system used to maintain, organize, or
coordinate multiple electronic storage systems is treated as an
indexing system. The requirement to maintain an indexing system will be
satisfied if the indexing system is functionally comparable to a
reasonable hardcopy filing system. The requirement to maintain an
indexing system does not require that a separate electronically stored
books and records description database be maintained if comparable
results can be achieved without a separate description database.
(7) Any person or entity choosing to retain completed Forms I-9
electronically may use reasonable data compression or formatting
technologies as part of the electronic storage system as long as the
requirements of 8 CFR 274a.2 are satisfied.
(8) At the time of an inspection, the person or entity required to
retain completed Forms I-9 must:
(i) Retrieve and reproduce (including printing copies on paper, if
requested) only the Forms I-9 electronically retained in the electronic
storage system and supporting documentation specifically requested by
an agency of the United States, along with associated audit trails.
Generally, an audit trail is a record showing who has accessed a
computer system and the actions performed within or on the computer
system during a given period of time, and
(ii) Provide a requesting agency of the United States with the
resources (e.g., appropriate hardware and software, personnel and
documentation) necessary to locate, retrieve, read, and reproduce
(including paper copies) any electronically stored Forms I-9, any
supporting documents, and their associated audit trails, reports, and
other data used to maintain the authenticity, integrity, and
reliability of the records.
(iii) Provide, if requested, any reasonably available or obtainable
electronic summary file(s), such as a spreadsheet, containing all of
the information fields on all of the electronically stored Forms I-9
requested by a requesting agency of the United States.
(f) Documentation.
(1) A person or entity who chooses to complete and/or retain Forms
I-9 electronically must maintain and make available to an agency of the
United States upon request documentation of the business processes
that:
(i) Create the retained Forms I-9;
(ii) Modify and maintain the retained Forms I-9; and
(iii) Establish the authenticity and integrity of the Forms I-9,
such as audit trails.
(2) Insufficient or incomplete documentation is a violation of
section 274A(a)(1)(B) of the Act.
(3) Any officer listed in 8 CFR 287.4 may issue a subpoena to
compel production of any documentation required by 8 CFR 274a.2.
Nothing in this section is intended to limit the subpoena power of an
agency of the United States under section 235(a) of the Act.
(g) Security.
(1) Any person or entity who elects to complete or retain Forms I-9
electronically must implement an effective records security program
that:
(i) Ensures that only authorized personnel have access to
electronic records;
(ii) Provides for backup and recovery of records to protect against
information loss, such as power interruptions;
(iii) Ensures that employees are trained to minimize the risk of
unauthorized or accidental alteration or erasure of electronic records;
and
(iv) Ensure that whenever the electronic record is created,
accessed, viewed, updated, or corrected, a secure and permanent record
is created that establishes the date of access, the identity of the
individual who accessed the electronic record, and the particular
action taken.
(2) An action or inaction resulting in the unauthorized alteration,
loss, or erasure of electronic records, if it is known, or reasonably
should be known, to be likely to have that effect, is a violation of
section 274A(b)(3) of the Act.
(h) Electronic signatures for employee.
(1) If a Form I-9 is completed electronically, the attestations in
Form I-9 must be completed using a system for capturing an electronic
signature that meets the standards set forth in this paragraph. The
system used to capture the electronic signature must include a method
to acknowledge that the attestation to be signed has been read by the
signatory. The electronic signature must be attached to, or logically
associated with, an electronically completed Form I-9. In addition, the
system must:
(i) Affix the electronic signature at the time of the transaction;
(ii) Create and preserve a record verifying the identity of the
person producing the signature; and
(iii) Provide a printed confirmation of the transaction, at the
time of the transaction, to the person providing the signature.
(2) Any person or entity who is required to ensure proper
completion of a Form I-9 and who chooses electronic signature for a
required attestation, but who has failed to comply with the standards
set forth in this paragraph, is deemed to have not properly completed
the Form I-9, in violation of section 274A(a)(1)(B) of the Act and 8
CFR 274a.2(b)(2).
(i) Electronic signatures for employer, recruiter or referrer, or
representative. If a Form I-9 is completed electronically, the
employer, the recruiter or referrer for a fee, or the representative of
the
[[Page 34517]]
employer or the recruiter or referrer, must attest to the required
information in Form I-9. The system used to capture the electronic
signature should include a method to acknowledge that the attestation
to be signed has been read by the signatory. Any person or entity who
has failed to comply with the criteria established by this regulation
for electronic signatures, if used, and at the time of inspection does
not present a properly completed Form I-9 for the employee, is in
violation of section 274A(a)(1)(B) of the Act and 8 CFR 274a.2(b)(2).
Dated: June 8, 2006.
Michael Chertoff,
Secretary.
[FR Doc. E6-9283 Filed 6-14-06; 8:45 am]
BILLING CODE 4410-10-P